FAZZINO v. THE STATE OF NEW YORK, #2001-015-528, Claim No. 95812

Synopsis

Claim for personal injury incurred in fall in prison bathroom dismissed for
failure to establish prima facie case against the State. Claimant failed to
demonstrate that the State created condition or had actual or constructive
notice of it and failed to remedy it. Claimant also failed to offer expert
testimony tending to prove that inadequate lighting in the area was a proximate
cause of his accident in light of defendant's testimony that lighting was
adequate.

The trial of this claim was bifurcated by order of the Court and the decision
herein addresses only the issue of liability.

In his claim the claimant alleges that he sustained personal injuries when he
slipped on a substance which resembled soap on the floor of the men's lavatory
at the Eastern Correctional Facility in Napanoch, New York. Claimant testified
on his own behalf and stated that in February, 1997 he was incarcerated at
Eastern Correctional Facility in the East Wing of the A Group Dorm. According
to the claimant, in the early morning hours of February 9, 1997 at approximately
1:30 a.m. he left his bunk and proceeded to the men's lavatory where he observed
a correction officer asleep at the duty station located immediately outside the
lavatory. Claimant testified that the lavatory contains two light fixtures, one
located in the front portion and the other in the back. As he entered the
lavatory claimant testified that the fixture in the rear was on while the light
located in the front portion of the lavatory was off leaving the area dark. The
bathroom is divided by fixtures and usage into two portions with that closest to
the entry containing three sinks and two urinals, with three flush toilets
located in the far end of the lavatory. There are also showers located close to
the entry. Claimant testified that the front portion of the lavatory was dark
because the light bulb had been unscrewed and that when he turned on the lights
utilizing the switch near the entry to the room only the light located in the
rear of the facility became illuminated. Claimant stated that on prior
occasions he had observed correction officers unscrewing the light bulb to
eliminate the light in the area near where the duty station is located.

Upon entering the bathroom area claimant attempted to reach the light bulb in
order to screw it back into its fixture and provide light. He was unable to
reach the bulb and took several steps into the darkened area where he slipped
and fell, sustaining injuries. Although claimant testified that he did not see
water on the floor when he fell, he stated that he noticed the floor was wet
when he regained consciousness. Claimant also testified that he experienced a
seizure, the nature of which was unspecified, but provided no further detail
with regard to the timing and effect of the seizure relative to the happening of
this event. After his fall, the claimant was assisted by the correction officer
on duty and other inmates and was taken to the infirmary where he was held
overnight and sent to an outside medical facility the next day.

Upon cross-examination, claimant testified that he was present for the 11:00
p.m. inmate count and then went to sleep. At approximately 1:30 a.m. he left
his bunk and proceeded to the lavatory where he observed that only the rear
portion of the area was illuminated while the front area was not. Despite the
alleged darkness and his admitted inability to reach the bulb from the bathroom
floor, claimant testified that the lightbulb was in the fixture but was loose
and therefore did not illuminate the area thus preventing claimant upon his
entry from observing either the urinals or sinks located in the front portion of
the bathroom. Claimant did not request assistance from the correction officer
on duty prior to entering the lavatory and, in response to a question, indicated
that no part of his body was wet subsequent to the accident although he had
testified on direct, as stated previously, that he observed water on the floor
upon regaining consciousness following his fall.

On redirect the claimant testified that he did not request assistance from the
correction officer on duty because the officer was asleep. Claimant rested and
the defendant moved to dismiss for failure to establish a

prima facie case. Decision on the motion was
reserved.

The defendant presented the testimony of Correction Officer John Bradley.
Officer Bradley testified that he has been employed by the New York State
Department of Correctional Services as a correction officer for eighteen years
and has been stationed at Eastern Correctional Facility for sixteen years,
during fifteen of which he has been assigned to the East Wing of the A Dorm.
Officer Bradley was on duty on the evening and early morning of February 8 and
February 9, 1997. According to Officer Bradley, twenty-one inmates were housed
in the East Wing of A Dorm in February of 1997. The officer stated that "lights
out" occurs at 11:10 p.m. each evening at which time the dorm area lights are
shut off while the bathroom lights and inmate cube lights may remain on.
Following lights out inmates are required to remain in their assigned area but
are allowed to go to the lavatory without restriction. Correction Officer
Bradley maintained a shift log which was admitted into evidence as Exhibit C.
According to Officer Bradley at the start of each shift he performs an inmate
count as well as a fire and safety check which involves a complete check of the
area to insure, for example, that there is no clutter, fire extinguishers are
charged, and includes a check of the bathrooms which the witness stated he
performed on the evening of February 8, 1997. The officer testified that he did
not notice any problem with lighting in the lavatory area during his evening
check and that he did not fall asleep at any time between the beginning of his
shift at 11:30 p.m. and the time of the accident. The witness denied unscrewing
the lightbulb located in the front portion of the lavatory. According to
Officer Bradley he observed the claimant enter the lavatory at approximately
1:30 a.m. on February 9, and heard claimant fall approximately 10 seconds
thereafter. The Officer went to render assistance and observed the claimant on
the floor shaking "like a fish out of water." He also observed that the
claimant was cut above his eye and that mucous was emanating from his mouth.
The officer stated that both bathroom lights were on and that he could see
clearly in the lavatory. Upon regaining consciousness the claimant stated that
he had slipped on water. The witness stated that he checked the entire floor
area in response to the claimant's statement but found no water on the
floor.

On cross-examination the witness stated that he would sometimes replace blown
bulbs in the lavatory using a chair located approximately thirty feet from the
correction officer's desk which is located immediately outside the bathroom
area. The witness explained that the bathroom lights illuminate the entrance to
the bathroom and the hallway immediately outside the entrance but do not shine
on to the correction officer's desk which is located on a platform immediately
outside the entrance to the lavatory but is separated therefrom by a partition.
According to the officer the first light fixture is located approximately seven
feet above the floor and four to five feet inside the lavatory entrance. The
second fixture is approximately fifteen feet away from the entrance and located
in the rear portion of the facility. The witness testified that he never
completed a report of inmate injury or other accident report and that the
claimant was taken to the infirmary by other officers who responded to the
accident.

The defendant also presented the testimony of Nurse Jo Eno who is a registered
nurse/nurse II and has been employed at Eastern Correctional Facility in that
capacity for ten years. Nurse Eno completed the report of inmate injury dated
February 9, 1997 which was admitted into evidence as Exhibit B. The report,
which was communicated to Nurse Eno by the claimant via an inmate interpreter,
indicates the cause of injury as "slipped in

H2O on bathroom floor and fell hitting head above (R) eye." Nurse Eno also
completed an entry in claimant's ambulatory health record which was admitted
without objection as Exhibit A. The entry dated February 9, 1997, and also
communicated through an interpreter, indicates that the claimant was seen after
slipping in water in a dark bathroom, falling and hitting his head. The entry
also indicates that Correction Officer Stewart stated to the witness that no
water was located on the bathroom floor but a mucousy substance was noted beside
the inmate. Nurse Eno clarified that this information did not come from
Correction Officer Stewart but, rather, was imparted by Correction Officer
Bradley who called the witness shortly before claimant arrived at the infirmary.
Nurse Eno performed neurological checks to evaluate the claimant's brain
activity based upon the report of his shaking at the scene and the injury
sustained to his head. Claimant's neurological signs appeared generally normal
and he was thereafter admitted to the infirmary where he remained overnight and
was later sent to receive outside medical treatment.

The defendant rested its case at the conclusion of Nurse Eno's testimony and
renewed its motion to dismiss for failure to establish a

prima facie case.

While the State is bound to take all reasonable precautions to protect persons
within its institutions, including a prison, it is not an insurer of their
safety (

Davis v State of New York, 133 AD2d 982). Rather, the State is subject
to the same standard applied to other landowners which requires that premises be
maintained in a reasonably safe condition under the circumstances (Condon v
State of New York, 193 AD2d 874). In order to impose liability in a slip
and fall case there must be evidence that the defendant created the dangerous
condition or had actual or constructive notice thereof (Calcagno v Big V
Supermarkets, 245 AD2d 698). "To establish constructive notice, the defect
must be visible and apparent, and must exist for a sufficient length of time
before the accident so as to permit the defendant's employees to discover and
remedy it" (Salkey v New York Racing Assn., 243 AD2d 621).

Claimant offered no testimony regarding the source of the substance he alleges
was on the floor, how long the substance was present prior to his fall or
whether he had observed water or any other liquid substance on the floor in that
area on any occasion prior to his accident. In fact, he testified that although
he did not see water on the floor prior to his fall he noticed the floor was wet
when he regained consciousness. His trial testimony differs somewhat from the
allegations set forth in the claim. In paragraph "C" of the unverified claim the
claimant alleged that "While on the floor the claimant notice [

sic] what appeared to be a slippery substance which resembled soap." At
trial, however, his testimony suggested that the substance was water. It is
noteworthy that claimant did not specifically identify the substance which
caused the floor to be wet nor did he describe the size, shape or condition of
the wet area. On cross-examination claimant admitted that no part of his body
was wet when he was taken from the accident scene to the
infirmary.

Correction Officer John Bradley, who was on duty on the night of the accident,
testified that although claimant, upon regaining consciousness, stated he had
slipped on water no water was observed on the floor in the area of the
fall.

Claimant failed to establish by a preponderance of the evidence what caused his
fall. Even assuming, arguendo, that there was water on the floor at the time
of claimant's fall, claimant offered no proof that the defendant caused the
condition or knew of it and failed to remedy it within a reasonable time (

see, Winecki v West Seneca Post 8113, 227 AD2d
978).

The same may be said for the claimant's allegation that lighting in the area
was inadequate. "It is basic that one alleging inadequate lighting must show a
breach of a duty of reasonable care and that such breach was the proximate cause
of the injuries (

Christoforou v Lown, 120 AD2d 386, 391). As in Christoforou, the
claimant herein offered no expert testimony to rebut the defendant's testimonial
evidence that the bathroom was adequately lighted both before and immediately
after claimant's fall. His failure to establish a causal relationship between
the allegedly dim lighting and the happening of the accident is fatal
(see, Schmidt v Barstow Assoc., ____ AD2d ____, 715 NYS2d 706;
Regan v Saratoga Hotel Corp., 23 AD2d 642, affd 18 NY2d 661;
Gordon v New York City Tr. Auth., 267 AD2d 201). Moreover, even if the
Court were to accept as true claimant's testimony that the room was inadequately
lighted on the night of the incident he failed to demonstrate that defendant's
employees were, in fact, either responsible for or aware of the lighting
conditions on the night in question. Although claimant testified that he had
previously witnessed both correction officers and inmates unscrew the light bulb
near the entrance to the bathroom he did not offer any evidence tending to show
when such activity occurred in relation to the happening of the incident at
issue herein. No evidence demonstrating that the bulb was, in fact, unscrewed by
one of defendant's employees or by someone acting under such employee's
direction and control was offered. In fact, if the area was so dimly lit that
he could not see the wet area on the floor it is doubtful that he could have
observed the condition of the overhead bulb to determine whether it was
unscrewed or whether it may have malfunctioned for some other, unrelated reason.
His testimony in this regard is, therefore, viewed as too speculative to form
the basis of liability against the State.

Finally, resolution of this matter ultimately rests upon issues of credibility.
The claimant argues that it was common practice to unscrew the light bulb in
question to prevent the light from shining on the correction officers' duty
station located immediately outside the entry to the lavatory, that the light
was unscrewed at the time of the incident and that Officer Bradley was asleep at
the desk as claimant entered the lavatory. Conversely, Correction Officer
Bradley testified that he had inspected the lavatory previously that evening and
noticed no lighting problems and denied that he unscrewed the light bulb or fell
asleep prior to the claimant's accident. The Court resolves the credibility
issues in favor of the defendant based, primarily, upon its observations of the
witnesses as they testified at trial. In addition, the photographs admitted as
Exhibits E and F demonstrate that although the desk utilized by correction
officers is located immediately outside and to the right of the entrance to the
lavatory it is separated therefrom by a solid partition wall. It is also clear
from the photographs that the desk faces away from the lavatory area. Under
these circumstances the Court declines to credit the claimant's otherwise
uncorroborated assertion that the light bulb in the front portion of the
lavatory was unscrewed to prevent the light from infiltrating the area where the
desk was located.

Absent the proof noted above, claimant has not established a

primafacie case of negligence against the defendant and the
defendant's trial motion to dismiss the claim must be
granted.